Edward Garnier KC speaks on the political and legal development of the UK’s sanctions regime at King’s College London

Edward Garnier KC spoke on the political and legal development of the UK’s sanctions regime at a conference on ‘Targeted Sanctions and Human Rights; Reflecting on the Global Human Rights Sanctions Regime in the UK and beyond’ at King’s College, London, organised by Yifan Jia,PhD Candidate & Visiting Lecturer at the Dickson Poon School of Law at KCL.

Transcript below:

May I begin by thanking Dr Kirkham for chairing this first Panel and Yifan Jia for organising this conference. It will I am sure prove to be a fascinating and productive day.

In her 2023 paper, Global Human Rights Sanctions and State Sovereignty: Does the New Tool Challenge the Old Order?  Yifan wrote:

Global Human Rights Sanctions Regimes (GHRSRs), commonly referred to as Magnitsky sanctions, are sanctions frameworks designed to address perpetrators of severe human rights violations committed abroad.

First established in the United States, she wrote, they were soon replicated in 35 other jurisdictions, including the UK and the EU, in our case through the Global Human Rights Sanctions Regulations 2020. GHRSRs can target individuals and entities and include visa bans, asset freezes, and transaction restrictions. The detail may differ state to state, but the overall policy and effect is the same. They look to punish those who have committed severe human rights abuses such as torture, extrajudicial killing, slavery and forced labour, disappearances and arbitrary arrest, as well as international crimes such as genocide and crimes against humanity.

What I will loosely call the West has shown its disapproval of human rights violations by targeting governments and individuals with a variety of measures that prevent travel, or impose financial, economic and trading restrictions. Natalia Kubesch will shortly talk about Magnitsky Sanctions as a Tool for Accountability for Human Rights Abuses, but I am going to speak about the development of sanctions policy here in the UK.

Last November Natalia and Skylar Thompson wrote this in the academic publication “Just Security”:

Without a comprehensive survivor-centred approach, diplomatic responses risk prioritizing the appearance of accountability over addressing the actual rights and needs of victims and their families. Genuine justice requires moving beyond symbolic gestures to implement tangible, survivor-centred actions that reflect a true commitment to accountability. [my emphasis]

I agree with that which is why I am going to talk about the effective projection of power rather more than the detail of the law. I will leave to others later today the analysis of the law and of how the English courts have interpreted and applied it. But if the intention today is to inform future policy development, a look at how the present state of affairs in this area of public policy was arrived at may be helpful, even if for reasons of time it will be taken at something of a gallop.

You cannot talk about modern sanctions without mentioning Sergei Magnitsky. He was, of course, a Russian lawyer who uncovered large-scale tax fraud. While working for Hermitage Capital in Moscow, a firm based in London and run by the financier Bill Browder, he discovered that millions of dollars of Hermitage tax payments had been syphoned off by Russian officials. He pointed out that Putin’s Russia was a kleptocracy. That was very rude of him – so he was arrested; but he refused to recant. As we all know, this very brave man died, indeed was murdered in jail in 2009.

Bill Browder, someone I have been privileged to meet on a couple of occasions here in London, started a campaign to have sanctions imposed on the officials involved – to get them banned from visiting the US and using the US financial system. A Magnitsky Act naming the Russians involved was passed by the US Congress in 2012. It was later broadened to become the Global Magnitsky Act of 2016, applying to gross human rights abusers anywhere. Other countries subsequently introduced their own versions of the legislation.

There was increasing pressure for the UK to follow suit. Various measures came before Parliament, Private Members’ Bills and amendments to Government Bills, although “Magnitsky” did not appear in their titles, and they did not refer to Russia.

Arguments used against introducing Bills or changing existing laws to enact Magnitsky sanctions included questions about the definition of ‘gross human rights abuse’ and the suggestion that powers to sanction gross human rights abusers were already there in existing legislation. Some questioned the effectiveness of Magnitsky legislation: it was argued that there are countless powerful human rights abusers; and choosing which of them to sanction was a subjective business. Inconsistencies in application would make designations more likely to be litigated. And of course, the effective international reach of any law depends on deployable power and the ability of the sanctioning country to impose its will on others.

Remember, genuine justice requires moving beyond symbolic gestures. At the risk of meandering down, if not memory lane, the seaways of 19th century history, we can learn something about efficacy of sanctions regimes from the Trent episode of 1861. The United States Navy boarded a British mail packet, the RMS Trent, in international waters as it sailed from Cuba to Britain with two Confederate envoys on board. They had evaded the US Navy’s blockade of Charleston, South Carolina, and made their way to Cuba to board a ship bound for England. The US was blockading Confederate ports both for military and for economic reasons. Britain respected the blockade but was neutral in the conflict between the north and south, albeit economically interested in importing Confederate cotton.  The captain of the US ship, Charles Wilkes, was an enthusiastic fellow.  He decided that the two Confederate envoys were contraband and the Trent liable to be seized. His second in command, Lieutenant Fairfax, thought that was a somewhat eccentric interpretation of the law on smuggling.  Wilkes essentially carried out what we would nowadays call the unlawful rendition of the two Confederate diplomats on their way to London. Their mission was to remind the British of the importance of raw cotton to the British economy, to persuade them to support the Confederacy against the United States, and to recognise its independence. Fairfax persuaded Wilkes that seizing the Trent as well as the envoys would not be helpful, rather as General Mike Jackson told his NATO commander, General Wesley Clark, that he was not going to start WW3 for him by provoking the Russians in Kosovo. Anyway, the two envoys did not end up in Guantanamo but in a Boston prison and the Trent carried on to England.

The Prime Minister in 1861 was Lord Palmerston. As Foreign Secretary in 1850 he had ordered the blockading of, and threatened to bombard, Piraeus after the home of a Gibraltarian merchant in Athens, Don Pacifico, had been attacked by an antisemitic mob in 1847.  The Greek government had refused to pay compensation. In a five hour defence of his actions in the House of Commons, Palmerston declared in his so-called civis romanus sum speech, that a British subject ought everywhere to be protected by the strong arm of the British government against injustice and wrong, comparing the reach of the British Empire to that of the Roman Empire, in which a Roman citizen could walk the earth unmolested by any foreign power.

Palmerston called the action by Captain Wilkes “a declared and gross insult”, demanded the release of the two diplomats and ordered 3,000 troops to Canada. There was talk of invading Maine and the American Pacific northwest with a view to their being subsumed into Canada. Much of the British public and many newspapers immediately saw it as an insult to British honour and a flagrant violation of maritime law. The London Chronicle’s response was typical:

Mr. Seward (the American Secretary of State) … is exerting himself to provoke a quarrel with all Europe, in that spirit of senseless egotism which induces the Americans, with their dwarf fleet and shapeless mass of incoherent squads which they call an army, to fancy themselves the equal of France by land and Great Britain by sea.

If you wondered where Trump and Vance leant their diplomacy and statecraft, now you know.

Treating the United States perhaps like Trump and Vance are treating Ukraine’s President Zelensky, Palmerston wrote to Queen Victoria on 5 December 1861 saying that if his demands were not met:

“Great Britain is in a better state than at any former time to inflict a severe blow upon and to read a lesson to the United States which will not soon be forgotten.”

The short point is that to enforce sanctions effectively (and I suggest that historically, sanctions took the form of naval blockades of target ports to prevent sea trade), to move beyond the symbolic to the tangible, you need the ability to project power and economic damage, and allies that will assist you by respecting your sanctions and by creating their own parallel sanctions. Of course, on their face sanctions are legal instruments, backed by legislation or international treaties, but at heart they are blunt expressions of foreign policy showing an intention to project power. After some months, rather than face war with Britain as well as with the Confederacy and without the support of the French, President Lincoln ordered the release of the two Confederate diplomats and calm was restored. Had Britain then been what Vance nowadays calls a random country, no doubt the interpretation of the law of the sea and the mid-19th century equivalent of the US sanctions regime would not have been decided in our favour; but in the mid-19th century we were the premier naval and economic power.

The US was of course trying to do no more than Britain had done in the 18th century. The First League of Armed Neutrality was an alliance of European naval powers between 1780 and 1783 intended to protect merchant shipping against the Royal Navy’s policy of unlimited search of neutral shipping for French contraband during the American Revolutionary War and Anglo-French War. According to one estimate, 1 in 5 merchant vessels were searched by the Royal Navy under this policy. By September 1778, at least 59 ships had been taken prize – 8 Danish or Norwegian, 16 Swedish and 35 Dutch, as well as others from Prussia. They all protested but as the combined navies of the League’s membership – that is Russia, Sweden (which ruled Finland) and Denmark (which ruled Norway), all of them countries that were neutral as between France and Britain and Britain and the United States – were smaller than the Royal Navy, Catherine the Great of Russia called it not so much armed neutrality as armed nullity.

To return to the 21st century, the Magnitsky amendments to UK legislation were widely welcomed in Parliament. Two statutes had ‘Magnitsky’ elements added to them: the Proceeds of Crime Act 2002 and the Sanctions and Anti-Money Laundering Act (SAMLA) 2018. The Criminal Finances Act 2017 amended the Proceeds of Crime Act 2002 to expand the definition of ‘unlawful conduct’ to include gross human rights abuse or violation. SAMLA includes gross human rights violation as a reason for imposing sanctions on a person or an entity. After the passage of the 2018 Act, the Government brought forward more detail on Magnitsky sanctions in the form of secondary legislation using the powers in that Act. But whereas we acted on our own in the 18th and 19th centuries, because we could, now we have to act in concert with other countries and international institutions and, as often as not, in line with the United States. Without those alliances our sanctions laws would have a greater symbolic quality than a practical one and, usually, if a person is designated here, they will have been designated by the EU, by the USA, and by other jurisdictions too.

Leaving aside events in Myanmar, the DRC, Venezuela, Iran, North Korea and other human rights abusing countries, there have been two major catalysts for the increase in UK sanctions in the last 15 years, Crimea and Ukraine. It began at a glacial pace post-2014 given the Russian conduct we were responding to, but following Russia’s annexation of Crimea in 2014 the EU introduced sanctions against Russia which we, as an EU member state, implemented. To ensure that the UK continued to operate an effective Russian sanctions after we left the EU, the Russia (Sanctions) (EU Exit) Regulations 2019 were implemented under SAMLA and came into force on 31 December 2020 replacing the equivalent EU provisions. These regulations covered financial sanctions, including asset freezes, immigration measures, trade sanctions and enforcement powers. A second set of sanctions regulations, implemented in February 2022, broadened the definition of an “involved person” who could be designated by the Sec of State and thus sanctioned. In essence they expanded the definition of those individuals or entities who are or who have been involved in obtaining a benefit from or supporting the government of Russia.

The policy behind the sanctions was explained by the Government as follows:

“designations … will bring coercive pressure to bear against the Government of Russia to encourage it to cease actions destabilising Ukraine, and undermining and threatening its territorial integrity, sovereignty and independence”; “designations … will constrain the Government of Russia’s ability to maintain its activities with regard to Ukraine. Many of the entities and individuals that could be designated under the amended criteria contribute financially to Russia’s exchequer or provide resources to the Government of Russia”; “the amendment itself as well as designations made using it will send a strong signal of condemnation to Russia”.

If you have applied to lift or ameliorate the conditions of a designation set by the Sec of State, you will have noticed that the court is not interested in whether the designation in any given case is effective so long as it is based on a sufficiency of evidence (which can include newspaper reports) and complies with the statute and regulations. It does not affect the outcome of the application that the designation of a particular person will actually have no influence upon Putin’s designs on Ukraine. Even if the court knows that designating, for example, a very rich expatriate Russian or a family member will make no difference to the Russian military-industrial complex or to the Russian economy as a whole, (and let’s not concern ourselves with the desire to send a strong signal of condemnation to Russia), it will not affect the outcome of the application. The courts leave foreign policy and the assessment of the national interest to government.

The Government announced the first new sanctions under the Sanctions Act in July 2020. They imposed asset freezes and travel bans on Saudi citizens alleged to have been involved in the murder of Jamal Khashoggi, the Saudi journalist murdered in the Saudi consulate in Istanbul. They also targeted Russian officials involved in the mistreatment of Sergei Magnitsky in jail. But in addition to SAMLA, resort can be made to the United Nations Act 1946, the Immigration Act 1971, the Anti-Terrorism, Crime and Security Act 2001, the Export Control Act 2002, the Counter-Terrorism Act 2008 and the Policing and Crime Act 2017. Sanctions Regulations may be made to introduce UK-specific measures or measures required by the United Nations Security Council or other international bodies. They often take the form of financial measures such as asset freezes, restrictions on access to financial markets and provision of financial services, directions to cease banking relationships or activities, and anti-money laundering provisions. Measures may also restrict or impose controls on immigration, trade, aircraft and shipping.

Over the last 15 years sanctions regulations have been politically uncontroversial. British politicians used to argue for and against sanctions against apartheid in South Africa. No one in Parliament would want to be seen to be in favour of the invasion of Ukraine, in favour of the murder of Magnitsky or Khashoggi, supportive of the Myanmar military junta or the authorities in Iran, and they aren’t.  Debates on the implementation of sanctions regulations, be they for human rights abuses or for invasions of neighbouring countries, are usually initiated by the Government at short notice and extend beyond 90 minutes only if there is a demand by a large number of MPs to be seen to be supportive of the sanctions. If there are complaints, they are procedural – not enough time, too short notice – and not about the substance, although occasionally some will say they do not go far enough.  For the Government sanctions are a weapon whose effectiveness depends on acting in concert with other powers; for Parliament they are an opportunity for showing solidarity with our friends and the victims of human rights abuses or, depending on your level of cynicism, virtue signalling. For lawyers and the courts they are a foreign policy omelette we cannot unscramble, and for a DP they are confounded nuisance but not life-threatening. Perhaps for Putin, so long as China and India buy Russian oil, even at a discount, they are just noise that does not penetrate the Kremlin.

I regret to say, however, that absent gunboats sailing up the Congo or the Irrawaddy, absent human rights abusers ending up in international courts and jailed (and very occasionally they do and they are), absent the Russian economy totally imploding and real democracy emerging, my fear, given the current US administration, and I regret this very much, is that genuine justice requiring our moving beyond symbolic gestures to implement tangible, survivor-centred actions that reflect a true commitment to accountability, is a policy aim that in too many cases is some way from its goal.

---

Lord Garnier KC

Call 1976 King's Counsel 1995

Related practice areas

Sanctions